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EB-2-NIW and Parole Amicus Brief

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I have submitted this to USCIS and urge others to also speak up with ideas about how USCIS might implement the various Directives from the Secretary's Memos.

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EB-2-NIW and Parole Amicus Brief

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 1 ADMINISTRATIVE APPEALS OFFICE (AAO) U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 20 Massachusetts Ave., NW, MS 2090 Washington, D.C. 20529-2090 Amicus Brief Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) joseph.whalen774@gmail.com REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES I. Introduction The President announced certain “Executive Actions” on immigration on November 20, 2014. In a series of separate actions, the Secretary of Homeland Security issued various Directives via Memoranda to his subordinate agency heads. In one such Memorandum, measures are called for to ease the pathway for individuals who are more likely than not to contribute to the U.S. economy and create jobs in the U.S. for American workers. The class of individuals is confined to “inventors, researchers, and entrepreneurs of start-up enterprises”. Primarily, in this regard, the Secretary issued two (2) Directives aimed at the United States Citizenship and Immigration Services (USCIS) to: (1) Clarify the standards by which members of this class of intending immigrants may apply for and receive a National Interest Waiver (NIW) which is available to beneficiaries or self-petitioners who otherwise qualify for an employment-based, second preference immigrant visa (EB-2) classification which is for either: (a) Members of the professions with advanced degrees (or equivalent), or
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 2 (b) Aliens of “exceptional ability” in the sciences, arts, professions, or business (it should be noted that one who qualifies via the arts is not likely eligible for consideration but it may be in the realm of possibility);1 and (2) Establish and promote the criteria necessary for an alien to obtain Significant Public Benefit Parole (Parole), per INA § 212(d)(5)(A) if they are among the class members identified in the Secretary’s Directives. The Secretary’s Memorandum specifically directs that: “…USCIS should propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.” [Emphasis added.] II. NIW Background There is only one administrative precedent decision that addresses the criteria for the National Interest Waiver (NIW). That case is in need of modification, or an additional case which is specific to a newly targeted class, would be most welcome. The only currently existing case is Matter of New York State Department of Transportation, 22 I&N Dec.215 (AAO 1998) (NSYDOT). It establish a three (3) prong test for eligibility for a National Interest Waiver. According to NYSDOT, at pp. 217-218: “Several factors must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employ- -ment in an area of substantial intrinsic merit. This beneficiary’s field of endeavor, engineering of bridges, clearly satisfies this first threshold. The importance of bridges, and their proper maintenance, is immediately app- -arent. It must be stressed, however, that eligibility is not established solely by 1 INA § 203(b)(2)(B)(i) [8 U.S.C. § 1153(b)(2)(B)(i)]
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 3 a showing that the beneficiary’s field of endeavor has intrinsic merit. A pet- -itioner cannot establish qualification for a national interest waiver based solely on the importance of the alien’s occupation. It is the position of the Service to grant national interest waivers on a case by case basis, rather than to establish blanket waivers for entire fields of specialization. Next, it must be shown that the proposed benefit will be national in scope. While the alien’s employment may be limited to a particular geo- -graphic area, New York’s bridges and roads connect the state to the nation- -al transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the coun- -try. Moreover, nothing in the record indicates that proper maintenance of New York’s transportation infrastructure would have an adverse impact on the interests of other regions. We therefore conclude that the occupation in this case serves the national interest. The final threshold is therefore specific to the alien. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the serv- ices of the alien by making available to U.S. workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national bene- -fit so great as to outweigh the national interest inherent in the labor certifi- -cation process. Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a sub- -stantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the alien’s qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well. Likewise, it cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker. The alien must clearly present a significant benefit to the field of endeavor.”
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 4 In other words, the three prong test from NYSDOT boils down to: 1) The employment sought must be in an area of substantial intrinsic merit; 2) The “proposed benefit” as embodied in the alien’s work product and/or influence must be “national in scope”, that is, ramifications must go beyond a mere local area of influence (and cannot be detrimental or counterproductive to the local, regional, or national field of influence, i.e. economy, job market, culture, education, environment, or welfare; as examples of “national interest”); and 3) This person must be shown to be better qualified than a U.S. worker with the same minimum basic skills, that is, the employer and/or this nation would be ill-served to be deprived of having this person made available to work in their field of endeavor from among the categories of the sciences, arts, professions; or business. The new DHS directives put the focus on those individual aliens who might be self- petitioners, but won’t always be self-petitioners, or self-employed for that matter. However, the idea of aliens potentially being self-employed was, in fact, envisioned in NYSDOT. Specifically, footnote number five (5), on page 218 reads as follows: “The Service [now USCIS] acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification. While this fact will be given due consideration in appropriate cases, the inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiver; the petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.” In short, NYSDOT delineated several essential elements that need to be considered when evaluating any request for a national interest waiver. First, the evidence must show that the desired employment is in an area of “substantial intrinsic merit”. Second, the evidence in support of the request must demonstrate that the proposed, prospective, significant public benefit to the national interest will truly be “national in scope”. Third and last, the petitioner or self-petitioner, as applicable, who is seeking the national interest waiver must establish that the alien beneficiary, or him/herself, as the case may be, will serve the national interest to a substantially greater degree than would an available United States worker having the same objective minimum qualifications.
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 5 III. Compare and Contrast EB-5 and EB-2/NIW Entrepreneurs In later EB-2/NIW cases, AAO has repeatedly stated that the mere fact of being an entrepreneur or investor is not categorically cause for granting a National Interest Waiver. This is so because a separate immigrant visa category exists for entrepreneurs and investors. However, the employment-based, fifth preference (EB-5) immigrant visa has specific requirements of a minimum investment amount and a minimum number full-time permanent jobs being preserved or created, as applicable. Due to the fact that the EB-5 Regional Center Program allows these investors to be nearly passive bystanders rather than true entrepreneurs, they have stringent and high benchmark requirements and a limited time to show results or else their status can be terminated and they can be removed from the United States merely by failing to produce the required results. That is rather harsh and cold-hearted but that is the trade-off for being mediocre and merely wealthy, rather than particularly talented in business. Until now, the EB-2 NIW was intended to be considered and granted on a case-by case basis rather than by establishing “blanket waivers for entire fields of specialization”. NYSDOT, Supra. That position does not need to change and should not change. However, the criteria can be expanded for the new realities faced in our changing world. The United States needs to restart the brain drain that immigration once was. The sad reality is that situation has changed to our detriment. Rather than fear an “invasion”, we must embrace innovation and positive, progressive change. On the following page is a chart to aid one in comparing and contrasting between EB-5 and EB-2 “entrepreneurs”. Since the possibility exists for an EB-2 entrepreneur to simply associate with or partner with someone who could act essentially as the “employer” in order to file and obtain a labor certification, that option is also included in the chart. The inherent dangers in that are three-fold: 1. The labor certification could be denied by DOL, 2. USCIS could interpret the stated qualifications such that the “entrepreneur” beneficiary is found unqualified, or 3. The DOL required recruitment effort could produce a better qualified candidate for the advertised position. So, even though a labor certification could be obtained, the National Interest Waiver route is probably the best choice for any real entrepreneur.
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 6 Compare & Contrast EB-5 and EB-2 ''Entrepreneurs" A BriefOvervieK•or "Entrepreneur Clreat-Siru t " EB-5 Eotrep~neurs EB-2 Eot~p~oeurs Sta11d Alone Investor Regional Cellltr With Pt>n/1/JIItlll Through National /merest or Group of Affiliated flll'l!stor Labor Cenijication a11d Vtlii'I!T (can also self no11-Regional Cemer Job Offer (can also self- petitio11 alone orthrough fiiiii!StOrS petition through OIVII Oll'n qualifyi11g business or qualifying busi11ess) b)•a~e/11 or U.S. emplow!r) INA § 2n3(b)(5) Pub. L. 102-395 §610 INA§ 203(bX2) INA § 203(b)(2) 18 usc§ 1153(bX5)1 [8 USC § 11 53 Note] [8 USC§ 1153 (b)(2)(A)] (8 usc§ 1153 (bX2XBXi)] as amended File 1-526 Pelltion File 1-526 Petilion File 1-140 Petition Fi.le 1-140 PetJLion Proofof having alre3dy Regklnal Center supplied Evidence of eligibility as a Evidence ofeligibility as a created 10 direct full-time EB-5 compliant pllln! and Proft'ssionol with an Proft'ssioiiDI with an permanent jobs for qunlified projections thru call for 10 Admnud Dt'gru or AdmnCt'd Dt'gru or employees or submit a direct or indirect full-time equivalent or of Exuptional equivalent or of Exct'ptional Mattu of1/o compliant jobs and previously vetted Ability(such as in Bu.fint',u) Ability Business Plnn tr.11t_'>:lction documentS Plan to invest minimum Plan to invel>t minimum Descripcion of busine~ Descripcion of bu..~in~s required nmount ofcnpital required nmount ofcapital venture (can be S4me as for venture (can be S4me as for a.nd lnwful pruh a.nd M>Urce and lawful path and source EB-5 or compnroble EB-5 or comp3r11ble evidence) of funcb documentary of funds documentary evidence) evidence evidence llut- the Palm Dhefl:e Greall} Bet"een EB-5 and EB-2 Entl't'prt-neurs Evidence of basic expected Evidence of basic expected ~ubstnntinl pro:rp«til't' subl.tnntinl prosp«til't' benefit benefit to the Nntionn.l to the • 3tionnl l nte~t•• lnu:rcst Approved Permanent Labor Evidence• in suppon of the Cenification Natioonl Interest Vail't'r wl Form ETA 7508 . Statement of Qualifications of A.lien (in duplicate) PoteotiaUy Receive an RFE or NOlO and Respood to It Obtalo Visa Clas.s1fkallon PetJlioo Appro'a! Apply ror and Obtain ao lmmij:rant Visa or Adjustment orSta.IUS llert' Lbe Palhs Dh efl:e Greall} Bet"een EB-S and EB-2 Entl't'prt-neurs Enter on EB-5 lmrnigra.nt Vbll or Obc3in Adjustment nnd Enter on EB-2 lmmig,ra.nt Visa or Obl3in Adju_qment and Conditional2 Ye-M""Green Card"' [Conditional Lnwful Regular 10 Year "Green Cnrd- (l.:lwful Permanent Residl:nt Perm3.nent R~ident (CPR) truus) (LPR) MlllUS) Continue "ilb or implement investment pl.aos. End orStory-Best orLuck Flle 1-819 Pelltion to un Conditions By Entrepreneur • Specific criteria round in: Matta ofNt'w York Stau Dt'pt. Submit Proofof Full lnve.-.tment a.nd I0 Qunlifying Jobs ofTronsponallon. 22 1&:-.1 Dec. 215 (Comm. 1998) Upon approval get new 10 Year "'Green Crud" or get (NYSD01) (Adcb: lntmwr Mt>nt & .Vatm110l m Srn('! to!!!. TERM'INATED. ~ued an NTA and see an lJ nnd plead tlrt' :-.l:uional lntel'l"ot). 'Our~. lose. nnd ~ue in Circuit Coun. •• One of th~ area_' mu-t benefit the :Sat.looallntuest: Econom~. Education, Culture. or Welfare oftht' Unittd Stairs. e-mail: Joseph whalen774@gmall com (Revised & posted on August 6, 2011.) Page 1
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 7 IV. Taking the NIW Determination in a New Direction Much has changed since NYSDOT was crafted back in 1998. OK, so approximately 17 years may not seem like that long but in the face of technological and cultural changes during that time, the world is almost unrecognizable in places and at times. There has been remarkable change in governments collapsing and reforming, Communist countries embracing capitalism, and democratic countries leaning towards socialized medicine. Twenty years ago we were impressed with increasing computer data storage and transfer rates in kilobytes (kpb), but today we have plowed through megabytes to a point where gigabytes are common-place. I ask: What’s next? Tetrabytes, Terrabytes, or Whatever-bytes? Are those first two even words, yet? Just as we measure data storage in new terms that did not exist in 1998, we must fashion a new approach to measuring the worth of a person’s knowledge, skills, and abilities (KSAs) as indicators of their promise and potential for NIW purposes. I can only offer a few small substantive suggestions but the biggest and best of them is to open up debate on this topic. To regroup, the intended newly defined class that USCIS has been directed to address for NIW purposes are: “inventors, researchers, and entrepreneurs of start-up enterprises”. One measure that has been specifically mentioned are entrepreneurs with financial backing. Another measure, specifically for inventors are patents on inventions, but also those with “track records” as “innovators”. While I found the mention of “innovation” initially associated with inventors, it could easily apply across all three of the intended occupations in this effort to refocus as per the new DHS Directives. The three categories, once again, are: “inventors, researchers, and entrepreneurs of start-up enterprises”. As for “researchers”, the measures that should mean more in this second- preference (EB-2) classification include grants, completion of theses or dissertations depending on what is covered (sciences, business, or something associated with a specific profession: social work, nursing, accounting, economics, political science, aviation, law, etc…), presentations at conferences (such as by grad students), stipends and even travel reimbursements could be more persuasive than when offered in first-preference (EB-1A) extraordinary ability or (EB-1B) outstanding professors and researchers I-140 visa petitions. Such routine items should carry more weight if viewed as signs of progress by the individual in their career. These things that have
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 8 until now been viewed as too commonplace to really matter or count for much, especially when offered in the EB-1 category, may make the difference in the EB-2 NIW equation desired by the Secretary and the President, as well as immigrants and immigration advocates, like me. V. Significant Public Benefit Parole Criteria Up to this point, this Amicus Brief has concentrated more on redefining the National Interest Waiver criteria. The other Directive of pertinence here is the option for Parole in those instances when the EB-2 NIW is still too lofty of a goal for a particular applicant or “self- petitioner”. In the Secretary’s Memo, Parole is indicated as an option for someone who falls short of attaining the NIW. How can that potential immigrant decide which way to proceed? If USCIS can manage to be explicit on both, the NIW and Parole criteria, then the potential immigrant “inventors, researchers, and entrepreneurs of start-up enterprises” will have a better idea of how their individual cases shape up and can make the more realistic choice. That is provided that they can be honest with themselves and retain counsel who is also forthright on their real chances at attaining the NIW at that point. If the client/applicant/beneficiary/self-petitioner does not yet have what it takes to attain the NIW, then Parole is going to be the better first step on that journey. The Directive points to the logical conclusion that Parole will be an opportunity for an intending immigrant to build their track record and commensurate credibility towards qualifying for the EB- 2 National Interest Waiver. So at this point, we need to examine the statute applicable to Significant Public Benefit Parole and any available case-law or other guidance addressing it. INA § 212 (d)(5)(A) [8 U.S.C. § 1182(d)(5)(A)] controls Significant Public Benefits Parole, it reads (with modifications added): (d) Temporary admission of nonimmigrants ********** (5)(A) The Attorney General [Secretary of Homeland Security] may, except as provided in subparagraph (B) or in section 1184(f) of this title [relating to denial of crewmember landing], in his discretion
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 9 parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General [Secretary of Homeland Security], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. (B) The Attorney General [Secretary of Homeland Security] may not parole into the United States an alien who is a refugee unless the Attorney General [Secretary of Homeland Security] determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under section 1157 of this title [relating to annual numerical limits on refugee admissions]. There is not much guidance available as to the exercise of parole. This is likely due to the fact that it is totally discretionary. No alien has any right to parole. However, USCIS has issued some small amount of guidance in the form of a Memorandum2 but it is narrowly defined and only applies to family members of the U.S. Military. There are a few Administrative Precedent Decisions on the topic of parole. I will only mention two of them. Matter of Castellon, 17 I&N Dec. 616 (BIA 1981) predates the creation of the Executive Office of Immigration Review (EOIR) and the Administrative Appeals Office (AAO). Back then, the Immigration Courts and BIA were still part of INS but it was recognized that there was a division of power. Castellon clearly states that the INS decisions as to parole were unreviewable by the BIA. I believe that today, it is recognized that the USCIS (or any DHS Agency) parole decision is unreviewable by EOIR. The other decision of interest to me is Matter of Matelot 18 I&N Dec. 334 (BIA 1982) in which the BIA remarked that neither it nor an Immigration Judge had any parole authority (they upheld an IJ’s refusal to entertain a “Motion for Parole”. By extension, today, that should extend to EOIR in general. 2 Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces and the Effect of Parole on Inadmissibility under Immigration and Nationality Act was issued on November 15, 2013.
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 10 I think the most important point to keep in mind is that the power to parole is strictly discretionary. While the statute does not state that it is unreviewable, it is hard to challenge in court as it must be demonstrated to be an “abuse of discretion”. In order to be deemed an abuse of discretion the result must be egregious, capricious, or not in accord with the law. It would need to be shown to be biased and invidious based on an impermissible factor such as race, national origin, ethnicity, language, marital status, gender, or even sexual orientation to name just the “biggies”. Primarily, for an abuse allegation to stick it would need to be viewed as an “unjust” result and deprivation of a substantive benefit. Exclusion or expulsion from the U.S. unjustly would be abuse. The pre-NIW version of Significant Public Benefit Parole is meant to benefit the national interest in anticipation of the recipient working towards eventually applying for, and qualifying for, an EB-2 Immigrant Visa and an accompanying National Interest Waiver. These parolees must be among the class identified in the Secretary’s Memo. Once again that class is defined as “inventors, researchers, and entrepreneurs of start-up enterprises”. These will be individuals who show promise and potential to “substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” See INA §203(b)(2)(A). I think that USCIS needs to develop some general criteria as non-exclusive and non- mandatory guides as to evidence and arguments that might suffice in showing “promise and potential”. What can an up-and-coming inventor show? How about patents, blueprints, schematics; a thesis, dissertation, or articles that (s)he has authored? What can a researcher present to bolster their argument? Evidence of progression along their career-track? Evidence of the authorship, presentations, thesis and/or dissertation? Fellowships and grants? Lastly, the entrepreneur might start with a solid business plan and evidence of financial backing and commitments from U.S. investors to join them or simply invest in them? Letters of invitation from U.S.-based entrepreneurs wanting to partner with them? I hope that this small effort gets the conversation started or that it moves the talks along. Thank you. VI. Example of a Definite Maybe AAO recently posted a sustained appeal for an L1-B “specialized knowledge” intracompany transferee. The following excerpt from that non-precedential administrative
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES - 11 decision describes a person who could likely benefit from the Secretary’s recent directives. Depending on the extent of the beneficiary’s contributions and other factors (such as having an advanced degree or equivalent), he may already be able to apply directly for a National Interest Waiver (NIW). In this example, this beneficiary had an employer who could easily petition for him to transfer to the U.S. and obtain a labor certification for an EB-2 qualifying position. Therefore, he would not have needed Significant Public Benefit Parole, in fact, AAO found that he qualified for the L1-B nonimmigrant visa. “The record reflects that the beneficiary has been employed by the petitioner's newly acquired subsidiary as a Data Analysis Engineer for over two years and that he had a lead role in the development of its proprietary Stream data process, which delivers real- time data analytics. The petitioner explained that that provides customers with access to a proprietary Software Development Kit (SDK), which simultaneously provides crash reporting and user data analytics functions and holds a significant share of the Android application market. The petitioner stated that it acquired the beneficiary's employer specifically to incorporate its innovative SDK into its existing array of proprietary business software products and to expand its presence in the mobile data-mining market. The petitioner provided a detailed explanation of its subsidiary's technologies, the beneficiary's role in their development, and its need for his services as a Big Data Engineer in the United States where he will lead the integration of the software and technologies he developed with the petitioner's existing catalog of software tools. After reviewing the initial evidence and the petitioner's response to a request for evidence (RFE), the director denied the petition, concluding that the petitioner did not establish that the beneficiary has been or would be employed in a capacity requiring specialized knowledge. The director's decision was based on a finding that the beneficiary performs the same or similar duties compared to other software developers, and that there was insufficient evidence to establish that his role requires a special or advanced level of knowledge in the information technology field. On appeal, the petitioner emphasizes that it requested the beneficiary's transfer as a specialized knowledge employee "because he is the creator of a unique product which does not exist outside of [the petitioner], a product which provides a highly sought after service achieved by no other company in the world." The petitioner also provides evidence of two patents listing the beneficiary as inventor for inventions specific to the enhancement of the above-reference as well as additional evidence of his involvement in the development of the proprietary technology owned by its subsidiary.” (AAO NOV212014_01D7101) [L1-B Sustained-Big Data Engineer] at p. 4
  12. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Data Analysis Engineer described above could be described further as either an "inventor" or as a "researcher" if he were seeking a National Interest Waiver under the new directive. The problem that he would run into is probably the same as most others seeking the NIW. If we were to apply the NYSDOT test to him he would probably be able to show intrinsic merit in the type ofwork he pursues which is to try to help solve major problems infecting large networks and systems, as well as track crashes and analytics in real-time. As stated above: "...The petitioner explained that that provides customers with access to a proprietary Software Development Kit (SDK), which simultaneously provides crash reporting and user data analytics functions and holds a significant share ofthe Android application market...." That blurb above tells me that his work reaches a very large market, i.e. the "Android application market". That means that it would be easy to show that his work products and influence are indeed, national in scope. So that's two prongs satisfied rather easily. With the existing third prong and this particular example I think he might be able to meet it more easily than most. He is the inventor of at least two things that wan·anted obtaining patents. His new employer bought up the company where he worked so that it could get its hands on the "proprietary" software and systems that this guy was instrumental in developing and deploying, and most likely troubleshooting along the way. It would be detrimental to the employer's business to NOT get this guy over here pronto! I bet that the employer could come up with projected losses or undue expenses in trying to fmd a replacement who would have to take a good amount oftime to get up to speed. Maybe this example was too easy? You be the judge, read on. CC: Dated this 27th ofDecember, 2014. Office ofthe Director, Office ofPolicy and Strategy (OPS) Office ofChief Counsel (OCC) s/Joseph P. Whalen Citizenship and Immigration Services Ombudsman (CISOMB) Date: 12/27/2014 REVISING EB-2 NATIONAL INTEREST WAIVER (NIW) & SIGNIFICANT PUBLIC BENEFIT PAROLE CRITERIA FOR INVENTORS, RESEARCHERS, AND ENTREPRENEURS OF START-UP BUSINESSES- 12

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